Judge: Frank M. Tavelman, Case: 22BBCV01209, Date: 2023-12-15 Tentative Ruling

Case Number: 22BBCV01209    Hearing Date: December 15, 2023    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION TO SET ASIDE DEFAULT JUDGMENT

ALLEGATIONS: 

On December 14, 2022 Mehrin May (“Plaintiff”) filed suit against Soheil Kashani, Cassandra Yekani, and Laurel Canyon Collection, Inc. (“Laurel Canyon”) (collectively “Defendants”) alleging Defendants failed to soundproof the floors in Plaintiff’s property in violation of Plaintiff’s quiet enjoyment.

On February 16, 2023, default was entered against Laurel Canyon. On June 2, 2023, the Court denied Laurel Canyon’s Motion to Set Aside Default without prejudice. The Court agreed that Laurel Canyon was entitled to mandatory relief on grounds of attorney mistake/neglect but found the failure to attach a proposed responsive pleading as required by Code of Civil Procedure § 473(b) to warrant denial without prejudice.

Laurel Canyon now moves to set aside the default on grounds of attorney mistake and attaches a copy of its proposed demurrer.  

ANALYSIS: 

I.                    LEGAL STANDARD 

Plaintiff seeks relief pursuant to Code of Civil Procedure § 473(b). Code of Civil Procedure § 473(b) has both a discretionary relief provision and a mandatory relief provision. (Jackson supra, 32 Cal. App. 5th 166, at 173.)  The discretionary provision of Code of Civil Procedure § 473(b), in pertinent part, reads as follows:

The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken…

The mandatory provision of Code of Civil Procedure § 473(b) reads, in pertinent part, as follows:

Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect. 

The general underlying purpose of Code of Civil Procedure § 473(b) is to promote the determination of actions on their merits. (Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830.) Under this statute, an application for relief must be made no more than six months after entry of the judgment, dismissal, order, or other proceeding from which relief is sought and must be accompanied by an affidavit of fault attesting to the mistake, inadvertence, surprise or neglect of the moving party or its attorney. (C.C.P., § 473(b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.)

II.                 MERITS

As with their previous motion, Laurel Canyon argues that the default should be set aside on grounds of excusable neglect pursuant to the mandatory provisions of Code of Civil Procedure § 473(b).

Counsel for Laurel Canyon attempted to meet and confer with counsel for Plaintiff after receipt of the Complaint. Laurel Canyon expressed a belief that Plaintiff had failed to comply with the requirements of Civil Code § 5925 et seq. by engaging in litigation without making a good faith effort to resolve the dispute through arbitration. (Swedelson Decl. ¶ 2.) Plaintiff’s counsel responded they believed they had met the statutory requirements and it was the failing of Laurel Canyon to follow through which resulted in the instant litigation (Swedelson Decl. ¶ 3.) The parties reached an impasse and Laurel Canyon informed it would render a responsive pleading by February 28, 2023. (Swedelson Decl. ¶ 6.) Plaintiff’s counsel filed a request for default on February 16, 2023. (Swedelson Decl. ¶ 7.) Laurel Canyon contends they received no prior notice that counsel for Plaintiff intended to enter default. (Swedelson Decl. ¶ 8.)

Plaintiff’s argument in opposition mirrors those made in opposition to the previous motion. Plaintiff argues that relief should not be granted because Laurel Canyon’s counsel was aware of the suit and thus the failure to respond could not be excusable mistake/neglect. (Oppo. pg. 6.) The mandatory provisions of Code of Civil Procedure § 473(b) do not require the attorney’s neglect or mistake be “excusable”. Here, Laurel Canyon’s counsel submits a declaration attesting to surprise which is sufficient for relief. Even if the failure to timely respond to the complaint was an act of neglect, the neglect would be attributable to Laurel Canyon’s counsel and would qualify for relief under Code of Civil Procedure § 473(b).

Code of Civil Procedure § 473(b) requires the moving party submit a copy of the answer or other pleading to be filed therein, otherwise the application shall not be granted. Here, Laurel Canyon has accompanied its motion with a proposed demurrer to Plaintiff’s Complaint.

Accordingly, the motion to set aside and vacate the default judgment is GRANTED.  

Administrative Note:   Defendant will need to schedule the demurrer and file the motion.  The responsive pleading attached to the current matter is not deemed the filing.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

Laurel Canyon Collection, Inc.’s Motion to Set Aside and Vacate Default came on regularly for hearing on December 15, 2023, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE MOTION TO SET ASIDE AND VACATE DEFAULT IS GRANTED.  

LAUREL CANYON IS TO FILE ITS DEMURRER WITHIN 10 DAYS.

CASE MANAGEMENT CONFERENCE IS CONTINUED TO APRIL 3, 2024 AT 9:00 A.M.

UNLESS ALL PARTIES WAIVE NOTICE, LAUREL CANYON TO GIVE NOTICE.

IT IS SO ORDERED. 

DATE:  December 15, 2023                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles